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New England focus. 43
U nder the Marriage
Amendment (Definition
and Religious Freedoms)
Act 2017, the definition of
marriage was changed from
‘a man and a woman’ to ‘2 people’ voluntarily
entering into a union for life, to the exclusion
of all others. This means that marriage is no
longer restricted to heterosexual couples.
This also means that
same sex marriages that
have occurred overseas
can now be recognised
in Australia, in the same
way as has been the
case for heterosexual
marriages. This also
means that people in
a same sex marriage
can now seek a divorce
in the same way that
heterosexual couples
have been entitled to
divorce, in the event of a
marriage breakdown.
Other impacts of the
change in the law mean
that the Family Law Act
1975 now applies to
same sex couples where there is a need to
consider property settlements and parenting
issues, in the event of a marriage breakdown.
Previously, same sex marriages could not be
recognised under Australian law under the
Family Law Act 1975. This meant that same
sex couples in NSW had to have their property
settlement issues dealt with as a de facto
relationship under the Property (Relationships)
Act 1984.
As the Property (Relationships) Act 1984
does not take into account the future needs
of a party as a consideration in a property
settlement, same sex couples could suffer
disadvantage in the event of a relationship
breakdown compared to heterosexual couples,
who could choose to have their settlement
dealt with under the Family Law Act 1975 and
have their future needs considered as part of a
final adjustment of property interests.
Marriage can and does affect rights under a
Will or a trust, so it is very worthwhile to seek
legal advice about the effects that marriage
will have, on your entitlements, if you are
contemplating getting married. It is also
worth getting legal advice, if you are thinking
of protecting individual assets, by entering
into a Binding Financial
Agreement, either in
contemplation of a
marriage or a divorce.
As the amendments
to the Marriage Act
1961 only occurred
late last year, it may
be a while before the
impacts of the change
are fully understood,
within the community. It
has also been necessary
to enact changes to
other legislation, both
to give practical effect
to the changes in the
Marriage Act, as well
as to ensure that the same safeguards under
anti-discrimination and other legislation are
maintained, and to avoid conflicts in the
legislation itself.
Whether you are in a heterosexual or
same sex relationship, it is important to seek
legal advice, about the effects of marriage
or divorce and any related issues, such as
the care of children, property settlement
and rights and expectations under a Will or
a trust. A lawyer can give you legal advice
and assistance to help you negotiate a path
through what can be a complex (but hopefully
joyful) time in life.
Talk to us You’ll be inspired!
Elizabeth D Stahlut
Solicitor
W I T H E L I Z A B E T H D . S T A H L U T ( S O L I C I T O R )thinking same sex marriage
This also means that same sex marriages that have occurred overseas can now be recognised in Australia, in the same way as has been the case for heterosexual marriages. This also means that people in a same sex marriage can now seek a divorce in the same way that heterosexual couples have been entitled to divorce, in the event of a marriage breakdown.
same sex marriagethinking